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Bar News - December 16, 2011


NH Supreme Court At-a-Glance - November 2011

By:

Chase Home for Children v. New Hampshire Division for Children Youth and Families, No. 2010-548
November 22, 2011
Affirmed


This case involves a contract dispute between New Hampshire Division for Children Youth and Families (DCYF) and its residential care providers (providers). The providers allege that DCYF underpaid them for fiscal years 2004, 2005, and 2006. The court agreed and affirmed the circuit court’s award to the providers.

DCYF pays private residential providers to care for children who were abuses, neglected, or abandoned. The rate paid is set by the Department of Health and Human Services’ administrative rules. For the years in question DCYF alleged that the legislature appropriated insufficient funds to cover the cost of providing for these children. The providers sued for payment according to the administrative rules. Before both an administrative panel and the circuit court, the rate to be paid was found to be determined by the administrative rules, and therefore, DCYF was found to have breached its contracts with the providers. DCFY appealed on the grounds that (1) it had no contractual relationship with the providers; (2) if there was a contractual relationship, the statute of limitations barred the providers’ claims for FY 2004 and 2005; (3) the order compensating the providers violated the separation of powers doctrine; (4) the providers did not have a private cause of action; and (5) DCYF did not violate the covenant of good faith and fair dealing.

DCYF challenged the treatment of Provider Service Agreements (PSAs) as contracts because, it argued, there was no meeting of the minds. DCYF argued that the parties never agreed to a material term: the rate to be paid. The court found that PSA stipulated that the rates would be determined "in accordance with He-C 6422," and there was no mention of the rates being conditioned on appropriations. Furthermore, there was an absence of standard state contract language regarding the "availability and continued appropriation of funds." The exclusion of this boilerplate term demonstrated to the court that the parties did not intend to condition of the rates on appropriations, but to calculate them according to the formula of the administrative rule. Therefore, there was a meeting of minds, and the PSAs were express contracts.

Furthermore, the circuit court found that implied-in-fact contracts existed for non-Medicaid beneficiary children. The PSAs did not cover children who were not Medicaid beneficiaries. The providers had, however, the same obligations to children not covered by Medicaid as to those who were. DCYF treated them exactly the same as children who were covered by Medicaid except that DCYF paid the providers the amount normally paid by Medicaid. The conduct of the parties showed that they intended the PSA terms to apply to non-Medicaid children, thus creating an implied-in-fact contract.

Regarding DCYF’s statute of limitations argument, the court found that the statute of limitations tolled during the proceedings before the administrative panel and were not expired for any of the fiscal years at issue. The court ruled that the statute of limitations tolled during pending administrative proceedings if those proceedings are a prerequisite to civil action. Therefore, the statute of limitations tolled until the administrative panel’s decisions were final.

DCYF next argued that the circuit court violated the separation of powers doctrine and RSA 9:19 by ordering it to compensate the providers. The court dismissed these arguments citing RSA 491:8 because the statute explicitly waives the state’s sovereign immunity and authorizes the courts to award compensation in contract disputes with the state. In addition, RSA 9:19 does not prevent the payment of compensation to the providers because its requirement that no official bind the state in excess of the amount "voted by the legislature" creates personal liability for officials entering into contracts not covered by appropriations. It does not prevent the courts from awarding compensation even if the amount is greater than the appropriated amount. The court found that RSA 491:8 specifically allows the attorney general to seek additional appropriations from the legislature if a breach of contract judgment exceeds the appropriations. In addition, accepting DCYF’s argument that RSA 9:19 prevents such an award would make RSA 491:8 superfluous.

The court did not address DCYF’s remaining arguments.

Lisa Snow Wade and Rachel Aslin Goldwasser of Orr & Reno for the plaintiffs. Michael Delaney for the State.


Fellows & a. v. Colburn & a., No. 2010-302
November 22, 2011
Reversed


This case involved a challenge to the court’s personal jurisdiction over the defendants. The court found that the defendants did not have sufficient contacts with New Hampshire to justify the exercise of the courts’ jurisdiction over them.

This dispute arose out of the sale of property located in Concord, New Hampshire, from a trust held by the defendants’ parents to the plaintiffs’ predecessors in title. The trust was originally created by the current trustees’ parents and the Concord property was conveyed to the trust in 1994. In 1996 the New Hampshire Division of Public Health Services Childhood Lead Poisoning Prevention Program issued a lead paint abatement order for the Concord property. These orders were never attended to. In 2000, the trust sold the property to the Guzmans allegedly without notifying them of the lead paint abatement orders. In 2003, the Guzmans sold the Concord property to the plaintiffs without informing the plaintiffs of the abatement orders. In 2004, the defendants became successor trustees, and in 2009, this suit was filed alleging a violation of federal law, negligence, and intentional misrepresentation by the trust and the defendants’ parents as trustees.

The plaintiffs argued that the defendants, as successor trustees and beneficiaries of the trust were liable for the actions of the trust and their parents as former trustees. The defendants, who live in Illinois, Florida, Massachusetts, and Colorado, argued that the action should be dismissed because the court lacked personal jurisdiction over them.

Applying the traditional analysis of looking to the state’s long arm statute and the defendants’ due process rights, the court concluded that the defendants did not have sufficient contacts with New Hampshire. In addition, they had not availed themselves of the state’s benefits by being beneficiaries of a trust which included proceeds from the sale of property within the state.

Looking at the defendants’ contacts with the state, the court found that the sale of the Concord property occurred four years before the defendants became trustees and six years before the defendants received distributions from the trust. The defendants were not involved in any way with the sale of the Concord property, and there was no evidence that they ever knew about the lead paint problem or the abatement orders. Furthermore, the trust had no connections to New Hampshire after the sale of the Concord property.

In determining whether the defendants had purposely availed themselves of the protection of New Hampshire’s laws, the court looked to whether the defendants voluntarily acted within the state such that they should have foreseen that they would brought before New Hampshire’s courts. That the defendants accepted their appointments as successor trustees after the sale of the Concord property was significant. The four years that passed made it unlikely that the defendants could reasonably have anticipated being haled into court in New Hampshire. It was not enough that the trust once held assets located in New Hampshire or that the defendants eventually received assets from the trust as beneficiaries.

The court also rejected the plaintiffs’ argument that RSA 564-B:2-202 establishes personal jurisdiction over the defendants because the court found that there was insufficient evidence to show that the trust was administered in New Hampshire.

Christopher J. Seufert and Lexie Rojas of Seufert Law Office, Franklin for the plaintiffs. Daniel E. Will and Jonathan M. Eck of Devine, Millimet & Branch, Manchester for the defendants.


Summary Montenegro v. City of Dover, No. 2010-412
November 2, 2011
Affirm in part
Reverse in part and Remand


This case involved the denial of Right-to-Know Law petition. Montenegro requested information regarding surveillance equipment and procedures under the control of the City of Dover. Montenegro’s request sought the disclosure of (1) the precise locations of the City’s surveillance equipment; (2) the recording capabilities for each piece of equipment; (3) the specific time periods each piece of equipment is operational; (4) the retention time for any recordings; and (5) the job titles of those who monitor the recordings. The City denied most of the request stating such information would (1) disclose techniques and procedures for law enforcement investigations or prosecutions; (2) disclose guidelines for law enforcement investigations or prosecutions; and (3) could reasonably be expected to risk circumvention of the law. The City did disclose the general location and buildings where cameras are, or are proposed to be, the number of cameras in or around each site, the capability and intent of the Dover Police "to monitor cameras from remote locations," the intent of the Dover Police not to monitor the cameras on a regular basis, but as needed to assist in law enforcement, the cost of the security equipment, the names of the vendors installing the security equipment, the contracts for installing the security equipment, and when the equipment was installed.

Montenegro then filed a petition with the superior court seeking the information the City did not provide. The City provided the trial court with a Vaughn index describing each document withheld or redacted and justifying the reason for nondisclosure. The trial court found that the City properly withheld the information at issue. Specifically, the trial court found that the job titles of those who monitor the surveillance recordings were "internal personnel practices" under RSA 91-A:5, IV and exempt from disclosure.

On appeal Montenegro argued that the trial court applied the wrong standard because the federal Freedom of Information Act (FOIA) does not control requests under the New Hampshire statute and the New Hampshire Constitution and RSA 91-A applies a higher standard than the FOIA. He also argued that the information he requested could not reasonably be expected to interfere with enforcement proceedings, risk circumvention of the law, or endanger the life or physical safety of any individual. Furthermore, Montenegro challenged the trial court’s finding that the job titles of those monitoring the surveillance recording were exempt from disclosure. He argued that people conducting their private affairs in public buildings have a right to know how they are being monitored, and the operation of hidden cameras for routine surveillance of the public violates Part I, Article 8 of the New Hampshire Constitution.

The New Hampshire Supreme Court interpreted the Right-to-Know Law as supporting the constitutional requirement that the public’s right of access to governmental proceedings and records not be unreasonably restricted. The court reviewed the trial court’s reliance on Murray v. N.H. Div. of State Police, 154 N.H. 579, 582 (2006), as outlining the appropriate test of exemptions. The court found that Murray was applicable because application of cases analyzing FOIA are in pari materia, involving law on the same matter and the same subject, and appropriate to assist in interpreting the Right-to-Know Law.

The court took the opportunity to clarify Murray, explaining that it intended to adopt the amended test set out in 5 U.S.C. § 552(b)(7) (2006). The court quoted Richardson v. United State Dept. of Justice, 730 F. Supp. 2d 225, 233 (D.D.C. 2010), holding that to withhold materials, an agency need not establish that the materials are investigatory, but need only establish that the materials were "compiled for law enforcement purposes, and that the material satisfies the requirements of one of the subparts of the test." In Murray, the court exempted, "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, … (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety or any individual …." Id.

Since the trial court applied exemptions (A), (E), and (F), the court did not look to the other available exemptions. The court found the information at issue here, met subpart (E) and was therefore, exempt.

Montenegro’s next argument was that the Part I, Article 8 of the New Hampshire Constitution and the Right-to-Know Law hold New Hampshire government agencies to a higher standard than the FOIA. The court dismissed this argument by pointing out that the standard is an unreasonable restriction on public access to governmental records. Therefore, there was no conflict between the exemption of subpart (E) of the Murray test and Part I, Article 8 of the New Hampshire Constitution.

The court granted Montenegro relief on his challenge to the trial court’s finding that the job titles of those who monitor the surveillance equipment was exempt. The court acknowledged that it had not previously interpreted this exemption (RSA 91-A:5, IV) outside the misconduct or disciplinary context. Looking to the U.S. Supreme Court for guidance, it found that "an agency’s personnel rules and practices are its rules and practices dealing with employee relations or human resources." Milner v. Dept. of Navy, 131 S.Ct. 1259, 1262 (2011). Applying this standard, the court concluded that the job titles of person who monitor the City’s surveillance equipment are not an "internal personnel practice" under RSA 91-A:5, IV.

Finally, Montenegro argued that the City’s failure to disclose the information he requested violated privacy rights or private parties under "Federal constitutional law." Montenegro argued that the citizens’ right to know the manner in which government conducts surveillance in public is "particularly compelling when private parties utilize public buildings to conduct private affairs." Montenegro did not allege, however, that he had utilized public buildings to conduct his private affairs. Therefore, under the general New Hampshire rule that a party has standing to raise a constitutional issue only when the party’s own rights have been or will be directly affected, Montenegro did not establish standing to assert this claim.

Montenegro also challenged generally the operation of hidden cameras for routine surveillance of the public by local government as violating Part I, Article 8 of the New Hampshire Constitution, but because he did not support this claim with an adequately developed legal argument, the court did not address it.

Petitioner, pro se. Allan B. Krans, of Dover for respondent.


State of New Hampshire v. Hernandez No. 2010-321
November 22, 2011
Affirmed


Ivonne Hernandez was convicted of second-degree murder and reckless endangerment after hitting two people with her car, killing one of them. On the night of the incident, Hernandez was drinking at a bar in Nashua. Upon leaving she had an altercation in a nearby parking lot with a group of people. The altercation became intense, and although Hernandez drove away, she returned soon after. Upon seeing the same group walking in the street when she returned, Hernandez accelerated and drove into the group. One person was killed and another injured. During an interview with police, Hernandez stated that she did not intend to hit anyone, but admitted that in the moment of accelerating she was thinking about the earlier altercation and getting back at those involved. On appeal Hernandez challenged the admissibility of her statements to police and the testimony of a witness who Hernandez argued was incompetent. The court found the statements and witness testimony admissible and affirmed her conviction.

Hernandez appealed the admission of her inculpatory statements made to police. She argued that these statements were involuntary and admitting them violated her constitutional due process rights. Hernandez argued that because the police officer said "between me and you" there was a promise of confidentiality. The court disagreed because unlike in cases where there was an impermissible promise of confidentiality, here the officer only hinted at confidentiality through this one statement. Hernandez had been told her Miranda rights, and the officers made it clear from the beginning of the interview that her statements could be used against her in court. There were no promises to Hernandez that her statements would not be repeated to others outside of the interview room.

Hernandez also argued that the statements were involuntary based on the totality of the circumstances. Whether a statement is involuntary is generally reviewed under a totality of the circumstances standard to determine if the defendant’s will has been overborne. The court reviewed the circumstances involved in the police interview and found that Hernandez was allowed a blanket, given food and drink, showed no signs of intoxication, and although Hernandez did not have prior experience with police, she is of at least average intelligence. The interview was approximately two hours in duration, and the police read and carefully explained Hernandez’s Miranda rights and obtained a waiver. The totality of the circumstances led the court to conclude that Hernandez’s statements were voluntary.

Hernandez also challenged the competency of one of the State’s witnesses. At trial the State called a homeless woman who saw the altercation in the parking lot. This witness expressed some delusional beliefs, but the trial court conducted a voir dire regarding her ability to understand and tell the truth and concluded she was competent to testify. Because the trial record supported that the witness understood her duty to tell the truth, the court determined that the witness was competent to testify.

Michael Delaney for the State. Pamela Phelan for the defendant.


State of New Hampshire v. Gardner No. 2010-672
November 2, 2011
Affirmed


Gardner pled guilty to driving while intoxicated. At the time of his offense he was nineteen years old. As part of his sentence he requested that his driver’s license be revoked for one year but that he be allowed to seek a six-month suspension of the revocation period if he entered an impaired driver intervention program within 45 days after his conviction. The trial court denied this request, and Gardner appealed. The Supreme Court affirmed the denial.

Gardner argued that the statutory provision allowing a six-month suspension of the nine-month mandatory revocation period for defendants who are twenty-one years old or older when a treatment program is completed, RSA 265-A:18, I(a)(4) (Supp. 2010), also applies to defendants who are under twenty-one years of age. The court rejected this argument.

In analyzing the provision applicable to defendants under age twenty-one, RSA 265-A:18, III, the court discerned two reasonable interpretations. After looking at the legislative history, however, the court determined that the defendant’s proposed interpretation was not what the legislature intended. Addressing the provision allowing suspension when treatment is sought, subparagraph I(a)(4), the legislative testimony reflected the goal of encouraging offenders into treatment programs without reducing the minimum sentence imposed. The legislature extended the minimum sentence for offenders over twenty-one and allowed the suspension to scale it back if treatment was sought. There was no legislative action on the provision for offenders under twenty-one.

Applying the treatment suspension provision to paragraph III would reduce the mandatory sentence for offenders under the age of twenty-one against the express intent of the legislature. Because the legislature never increased the minimum sentence for offenders under age twenty-one, the court could assume it did not intend subparagraph I(a)(4) to be applied to paragraph III and thus reduce the mandatory revocation period of offenders under age twenty-one.

Michael Delany for the State. Richard Samdperil of Samdperil & Welsh, Exeter for the defendant.


State of New Hampshire v. Gingras, No. 2010-274
November 2, 2011
Reversed and Remanded


Gingras was convicted of reckless conduct, criminal threatening, and criminal mischief. On appeal he challenged the conviction and sentence. He argued that the trial court erred by (1) sentencing him on both convictions; (2) failing to give his proposed self-defense jury instruction; and (3) instructing the jury that brandishing a firearm constituted use of deadly force. The court reversed the two convictions and remanded.

The convictions arose out of a confrontation between Gingras and another driver. The other driver swerved in front of Gingras from the left, causing Gingras to swerve to avoid hitting this driver. Gingras pulled in front of the other driver, got out of his vehicle and approached the other driver on foot. Gingras then slammed his fists on the other driver’s hood and climbed on top of the car and stomped on the roof. This caused the other driver to get out of his vehicle and threaten to beat Gingras up. Being much smaller than the other driver, Gingras returned to his vehicle and withdrew a handgun from the glove compartment. At this point the other driver retreated and called 911. The police arrived soon after and arrested Gingras.

Gingras’ first challenge was that both the state and federal double jeopardy clauses prevented him from being convicted of both criminal threatening and reckless conduct because both convictions arose out of the same conduct. Reviewing this constitutional question de novo, the court explained that double jeopardy is found unless each offense requires proof of an element not required of the other. The court compared the elements of a criminal threatening charge and those of reckless conduct and found that the reckless conduct charge required the state to prove Gingras put the other driver in actual danger of serious bodily injury whether or not he feared such injury, while the criminal threatening charge did not require proof that the other driver was in actual danger. Because the two charges required proof of different elements, Gingras’ double jeopardy rights were not violated.

Regarding Gingras’ arguments on the jury instructions, the court found that the trial court erred because there was sufficient evidence requiring a self-defense instruction be given. Furthermore, the issue of whether deadly force was used was a matter for the jury to decide. The state argued at trial that Gingras used deadly force, but Gingras did not specifically argue that his actions did not constitute the use of deadly force. Based on these arguments, the existence of deadly force was best determined by the jury.

At trial Gingras requested that the court instruct the jury on the definition of both deadly and non-deadly force. The trial court complied, but only read the first sentence of RSA 627:9, II, omitting the sentence beginning "purposefully firing a firearm" because there was no evidence that Gingras had fired his gun. By excluding the sentence describing deadly force in terms of "purposefully firing a firearm" the trial court misinstructed the jury on a point of issue to Gingras’ theory of defense and created confusion for the jury over whether brandishing or threatening use of a deadly weapon constituted the use of deadly force. By refusing to instruct the jury on the entire statutory definition of deadly force, the trial court abused its discretion, requiring reversal of Gingras’ convictions and remand for a new trial.

Michael Delaney for the State. Stephen Jeffco of Portsmouth for the defendant.


State of New Hampshire v. King . No. 2009-704
November 2, 2011
Reversed and Remanded


Horace King (King) was convicted of two counts of aggravated felonious sexual assault under RSA 632-A:2. He appealed this conviction on the grounds that the trial court erred in denying his motion to review in camera the victim’s medical and counseling records. The court agreed with King and reversed and remanded.

King sought review of the victim’s medical records to support his defense theory that she made up the allegations against him and had a "tendency to lie." Review of some medical records revealed that the victim had been diagnosed with Attention Deficit Disorder (ADD) and Oppositional Defiant Disorder (ODD). King sought information for the basis of these diagnoses and regarding how prescribed medications might affect the victim’s competency as a witness. Additional Division for Children, Youth and Family and Mental Health Center records documented a previous false allegation of sexual assault made by the victim and the victim’s tendency to "make up stories."

The court held that a defendant’s request for an in camera review is governed by State v. Gagne, 136 N.H. 101 (1992). In Gagne, the court explained that "due process considerations require trial courts to balance the State’s interest in protecting the confidentiality of child abuse records against the defendant’s right to obtain evidence helpful to his defense" and in camera review "provides a useful intermediate step between full disclosure and total nondisclosure." 136 N.H. at 105. The defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense.

King presented specific arguments demonstrating how the medical records would be material to his defense. Thus, the trial court’s denial of his request was an unsustainable exercise of discretion. In addition, the trial court’s conclusion that the requested records were duplicative was speculative since the court never reviewed the records and did not know what they contained.

The court reversed the trial court’s decision and remanded the matter with instructions for the trial court to conduct an in camera review of the victim’s medical records. If the trial court’s review reveals evidence that would have been "essential and reasonably necessary" to King at trial, a new trial is warranted unless the trial court finds that the error was harmless beyond a reasonable doubt.

Michael Delaney for the State. Pamela Phelan for the defendant.


State of New Hampshire v. Marshall, No. 2009-508
November 3, 2011
Affirmed


Jeffrey Marshall (Marshall) supplied heroin to an intoxicated individual who died after ingesting the heroin. Upon discovery of the decedent, Marshall’s girlfriend gave Marshall the decedent’s money and Marshall fled the scene while she sought medical assistance for the decedent. Marshall was convicted of receiving stolen property and dispensing a controlled drug – death resulting. On appeal, Marshall argued that (1) the trial court erred in finding the indictment sufficient; (2) the State failed to introduce sufficient evidence; (3) the verdict was not supported by the weight of the evidence; and (4) his convictions should be vacated because a portion of his trial record was lost and could not be reconstructed. The court affirmed his conviction.

Marshall challenged the sufficiency of the indictment, under Part I, Article 15 of the New Hampshire Constitution, arguing that it must set forth factual evidence showing both "but for" and proximate causation. The court rejected this argument, finding that paragraphs (a) and (b) of RSA 318-B:26, XI, were not additional elements but explained the types of causation required for criminal liability to be established under the statute. The "death resulting" component of the charged offense put Marshall on notice that causation would be at issue.

Marshall also argued that the indictment was deficient because it did not set forth the elements essential for invoking a sentencing enhancement. This argument, determined the court, was based on a misreading of the court’s decision in State v. Ouellette, 145 N.H. 489 (2000). The court clarified that Ouellette’s reference to such a requirement was dicta only and that any fact that increases the penalty for a crime beyond the statutory maximum need not necessarily be alleged in the indictment. The court assumed without deciding that the New Hampshire Constitution requires such facts to be included in the indictment, but found that this requirement was met. The enhancing factor, that heroin dispensed by Marshall caused death, was included in the indictment. The indictment was not deficient.

Next Marshall argued that the State failed to meet its burden of proving beyond a reasonable doubt that the death was "not too dependent" on the decedent’s own alcohol consumption to have a just bearing on Marshall’s liability. The court rejected this argument pointing out that under RSA 318-B:26, IX, a person who dispenses heroin is strictly liable for a death that results from the ingestion of that drug. In order to have a bearing on Marshall’s liability, the court interpreted RSA 318-B:26, IX as requiring (1) a finding that the death must have been too dependent upon the decedent’s own conduct and (2) that conduct must have been unrelated to the ingestion of the heroin or the effect of the heroin. The court determined that the jury could have found the "too dependent" exception did not apply in this case because the decedent’s consumption of alcohol was related to the effect of the heroin, and therefore Marshall’s dispensing heroin caused the death.

Marshall also challenged the sufficiency of the evidence to prove that the heroin caused the death. By the reasoning applied above, the court determined that a reasonable jury could have found that Marshall’s actions caused the death and rejected this argument.

Finally, Marshall argued that he was entitled to a new trial because part of his trial record was lost. The court disagreed stating that to obtain a new trial under these circumstances, a defendant must show specific prejudice to his appeal because of the incomplete record. Marshall was unable to show that he was prejudiced by the lost portion of his trial record.

Michael Delaney for the State. Pamela Phelan for the defendant.


State of New Hampshire v. Ploof, No. 2009-469
November 2, 2011
Affirmed


This case appealed Ploof’s commitment as a sexually violent predator under RSA 135-E:13. Ploof challenged the constitutionality of the statute arguing that it violated his right to procedural due process, the New Hampshire Constitution’s separation of powers provisions and his right to equal protection. Because he raised a facial challenge to the statute’s constitutionality, Ploof had to establish that "no set of circumstances exist[ed] under which the Act would be valid." He was unable to meet this heavy burden, and the court affirmed his commitment.

Under RSA 135-E:13, an offender believed to be a sexually violent predator is granted a hearing and a jury trial before being committed. If the offender is found to be a sexually violent predator and a danger to the public, he is committed for five years. At the end of five years, the county attorney or the attorney general can petition for the offender to be committed for another five year term. The recommitment process grants the offender a hearing, but not another jury trial.

Ploof’s due process arguments were that RSA 135-E:11 violates due process by abrogating the rules of evidence without providing an adequate substitute and by failing to require the State to meet the "beyond a reasonable doubt" standard of proof. The court rejected both of these arguments.

Regarding the statute’s rejection of the rules of evidence, the court found that the statute was still in compliance with due process because the basic requirements of relevance and reliability protect an individual in RSA 135-E commitment proceedings from the prejudicial misuse of information. In addition, the court found that the statute includes other safeguards such as restrictions on when evidence of the individual’s prior conduct and the multidisciplinary team’s report are admissible. By not requiring adherence to the rules of evidence, the statute did not create a free for all where prejudicial information could be presented without any protective check.

Ploof’s burden of proof argument was similarly unsuccessful. Looking to the US Supreme Court for guidance, the court determined that different burdens of proof were allowed for criminal and civil proceedings even if the deprivation of one’s liberty was at stake. Furthermore, Part I, Article 15 of the New Hampshire Constitution was amended in 1984 to incorporate a "clear and convincing" standard in commitment proceedings for persons acquitted of a criminal charge by reason of insanity. Ploof argued that the amendment should be restricted solely to criminal insanity cases, but the court held that there was no "apparent justification for different standards" for criminal insanity cases and sexually violent predator cases. Therefore, the clear and convincing standard of RSA 135-E does not violate the Constitutional due process guarantee. The court also found, like with the evidentiary argument, that the statute provides sufficient safeguards to protect an individual from erroneous deprivation of his liberty interest.

Ploof’s next argument was that the statute’s abrogation of the rules of evidence violated the separation of powers doctrine by allowing the legislature to usurp a judicial function by regulating how a court regulates evidence in adjudicating sexual predator commitment cases. Ploof relied on Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997), where proposed legislation modifying a court rule of evidence was found to violate separation of powers. Unlike in that case, here, the court determined that RSA 135-E’s abrogation of the rules of evidence did not modify an existing court rule, so there was no conflict between the statute and the court rules of evidence and thus, no violation of the separation of powers doctrine.

Ploof’s final challenge was that RSA 135-E violates the equal protection doctrine because it applies lesser procedural protections than other civil commitment statutes. Equal protection inquiries begin with a determination of what level of scrutiny should apply. Ploof argued that strict scrutiny was appropriate, but the court found that a rational basis review was sufficient. Like the trial court, the court determined that the right at issue—to have the rules and procedures applicable in general civil commitment proceedings applied—was not a fundamental right, even where liberty might ultimately be at stake. Finding that previous equal protection challenges to the application of differing sets of rules applied the rational basis standard, the court determined that the classification of sexually violent predators was not arbitrary and that the legislature stated a sufficient governmental interest when enacting the procedural protections of RSA 135-E. The legislature specifically mentioned the particular risks posed by sexually violent predators and their unique treatment needs. The factors relevant in treating sexually violent predators while protecting the public were sufficient to justify the differing procedural standards for civil commitments under RSA 135-C or RSA 171-B and those under RSA 135-E.

Michael Delaney for the State. Christopher Johnson for the defendant.


State of New Hampshire v. Soto, No. 2010-458
November 22, 2011
Affirmed


Michael Soto (Soto) appealed his conviction as an accomplice to first-degree murder. Soto argued that the trial court erred by (1) not giving the jury a provocation manslaughter instruction; (2) not giving the jury a reckless manslaughter instruction; and (3) allowing an audio recording of a co-defendant discussing the crime with an informant. The court affirmed Soto’s conviction.

This case arose out of a retaliation killing for an attack on Soto’s friend. Soto and five other men decided to respond to the beating of their friend by shooting one of the attackers. The lead up to the shooting was a tit-for-tat dispute between two groups. A member of Soto’s group was threatened with a knife, that victim’s cousin punched the threatener, his friends then attacked with baseball bats the man who did the punching, and finally Soto’s group shot one of the men involved in the attack.

Soto argued that this lead up was sufficient evidence to support a provocation instruction. The court ruled that a defendant is only entitled to a requested jury instruction if there is some evidence to support a rational finding in favor of that defense. A provocation defense must involve provocation so severe or extreme as to provoke a reasonable person to kill another person out of passion. This defense can be barred, however, where the time elapsing between the provocation and the killing is sufficient that a reasonable person’s passion would have cooled.

Focusing on the existence of a "cooling" period and the actions of the group, the court found a lack of provocation. Between the time that Soto and the other five men learned of the attack on their friend and the shooting, two hours passed. In that time Soto found a gun, met with the other five for a half hour to decide what to do, drove the half-hour’s distance to Manchester, located the victim, drove around that location two or three times, discussed who among the group would do the shooting, and prepped the gun. Those two hours were a sufficient cooling period. The defendant was not entitled to the provocation instruction.

The court also addressed the somewhat inconsistent ways in which the court has approached provocation manslaughter in the past and resolved the inconsistency. The court found that some cases treated provocation manslaughter as a lesser-included offense of murder while others treated it as a defense to murder. The court concluded that provocation manslaughter is best understood as a partial defense because it includes a set of mitigating circumstances that can negate the mens rea required for intentional murder and even where it does not have that negation effect can support a jury’s finding the defendant guilty of a separate, less culpable offense then murder.

As a partial defense, provocation should be treated in the same way as self-defense. Therefore, in future murder prosecutions, the State must prove the absence of provocation beyond a reasonable doubt when the defendant presents evidence supporting a rational finding that he caused the death under the influence of an extreme provocation. Juries should be instructed in an acquittal first fashion indicating that if the jury finds the defendant not guilty of first-degree murder, it should consider whether the State has proved the elements of second-degree murder. If the defendant is found not guilty of second-degree murder, it should then consider whether is he is guilty of provocation manslaughter. If the jury reaches the provocation manslaughter elements, it should be instructed that it can find the defendant guilty despite the influence of an extreme mental or emotional disturbance caused by the extreme provocation as long as the State proves those elements beyond a reasonable doubt.

Soto next argued that the trial court erred by not giving the jury the reckless manslaughter instruction because reckless manslaughter is a lesser-included offense to the charge of murder. The State concedes that reckless manslaughter is a lesser-included offense, but countered that the error was harmless. The court agreed that the error was harmless because it was unlikely that the jury would have considered such a lesser offense.

Soto was charged with two offenses: (1) first-degree murder and (2) reckless second-degree murder. The jury was instructed to only consider the lesser offense if it first acquitted Soto on the first-degree murder charge. The jury found Soto guilty of first-degree murder. Therefore, the court found that even if the trial had instructed the jury on the lesser-included offense of reckless manslaughter, the jury would not have considered it because the jury felt the evidence supported more serious first-degree murder charge.

Soto’s final challenge was against the admission of a jailhouse recording of a conversation between a co-defendant and a confidential informant. In the recording the member of Soto’s group who actually did the shooting references Soto prepping or cocking the gun for him. The court assumed without deciding that the admission was in error, but concluded that the error was harmless. The prejudicing evidence, that Soto cocked the gun, was admitted through direct testimony of another member of the group and was unnecessary to a finding of guilt. Because, even without the recording, there was overwhelming evidence supporting a finding of guilt beyond a reasonable doubt, the admission was harmless.

Michael Delaney for the State. Andrew R. Schulman and Clara E. Lyons of Getman, Schulthess & Steere, Bedford for the defendant.


Union Leader Corporation v. New Hampshire Retirement System, No. 2010-784
November 3, 2011
Affirmed


This case involves a Right-to-Know Law (RSA 91-A) request for retiree benefits information. The Union Leader Corporation (Leader) filed a Right-to-Know request with the New Hampshire Retirement System (NHRS) for the names and amounts received of the 500 state retirement system members who received the highest annual pension payments from Jan. 1 to Dec. 31, 2009. NHRS refused to turn over the information arguing that such a disclosure would violate the privacy rights of its members. The trial court found that such information was subject to a mandatory disclosure under the terms of RSA 91-A:4, I-a. NHRS appealed the order of disclosure arguing that (1) the language of RSA 91-A:4, I-a did not require disclosure; (2) that section was ambiguous; (3) the privacy interest at stake barred disclosure; and (4) the public’s interest was not sufficient to justify disclosure. Leader argued that the trial court was correct in ordering disclosure, but should have awarded it attorney fees and costs.

The focus of the court’s analysis of RSA 91-A:4, I-a was on the definition of the word "upon." The statute calls for disclosure of records of "any payment made to an employee for any public body or agency listed … upon the resignation, discharge, or retirement of the employee..." RSA 91-A:4, I-a. Finding both parties’ suggested definitions reasonable, the court held the statute to be ambiguous and looked to legislative history. The legislative history revealed an intention to disclose payments made "in connection with [an employee’s] leaving employment that are not payments associated with an employee’s salary and accrued benefits." Therefore the statute did not require disclosure of the names and annual pension payments.

Nonetheless, the court determined that disclosure was compelled by the general mandate of RSA 91-A:4 and Part I, Article 8 of the New Hampshire Constitution. Balancing the retirees’ rights to privacy against the public’s interest in knowing how public entities administer funds to employees upon termination of employment. Finding that public retirees’ privacy interest in the amounts of their annuities is not as strong as the public’s interest in monitoring the activities of government and uncovering potential governmental error or corruption, the court concluded that disclosure was compelled.

The court did not address Leader’s request for reversal of the trial court’s denial of its attorney fees and costs because Leader failed to file a cross-appeal.

Kathleen C. Sullivan of Malloy & Sullivan, Manchester for the plaintiff. Edward M. Kaplan and Sarah S. Murdough of Sulloway & Hollis, Concord for the defendant. William L. Chapman of Orr & Reno, Concord for New England First Amendment Coalition as amicus curiae.


Appeal of New Hampshire Department of Corrections (New Hampshire Compensation Appeals Board)
Argued: September 22. 2011
Opinion Issued: November 29, 2011
Affirmed.
  • Whether the New Hampshire Compensation Appeals Board (CAB) erred in deciding that the Petitioner was entitled to ongoing temporary total disability indemnity benefits.
The claimant first filed a workers’ compensation claim in January 2008, alleging that he suffered emotional injuries on August 18, 2007, because of harassment and retaliation at his job with the Department of Corrections. The insurer denied the claim on January 25, 2008, on the ground that the claimant’s injuries were not causally related to his employment. On June 16, 2009, the CAB ruled in the claimant’s favor, awarding him benefits from October 24, 2007, the date he was deemed unable to work, through “at least” October 20, 2008, the date of the initial hearing before a department of labor hearing officer. On October 2, 2009, the claimant sought to have his benefits increased to the higher temporary total disability rate beginning September 17, 2009, when he was hospitalized for “[m]ajor depressive disorder, recurrent, severe, with psychotic features.” The insurer denied this request on October 15, 2009, on the ground that the claimant had failed to demonstrate that his hospitalization was related to his August 2007 work injury. A department of labor hearing officer ruled in the insurer’s favor in January 2010; the claimant appealed to the CAB.

On August 26, 2010, the insurer filed a motion in the CAB proceedings to dismiss the claimant’s request for increased benefits because, in 2008, he had filed a claim with the New Hampshire Commission for Human Rights, seeking damages for his alleged. N.H. Rev. Stat. § 281-A:8, III (2010). On October 6, 2010, the CAB denied the insurer’s motion to dismiss, deciding that the claimant was entitled to ongoing temporary total disability indemnity benefits from his September 2009 hospitalization because he had proved that his hospitalization was related to his original August 2007 work injury. The insurer unsuccessfully moved for reconsideration and appealed to the New Hampshire Supreme Court.

Here the New Hampshire Supreme Court found that workers’ compensation is an employee’s exclusive remedy for “all rights of action whether at common law or by statute against the employer or its insurance carrier.” N.H. Rev. Stat. Ann. § 281-A:8, I; see Tothill v. Estate of Center, 152 N.H. 389, 394-95 (2005). N.H. Rev. Stat. Ann. § 281-A:8, III contains a limited exception to the workers’ compensation exclusivity bar for claims of “wrongful termination” or “constructive discharge.” See Lacasse, 154 N.H. at 251. Under N.H. Rev. Stat. Ann. § 281-A:8, III, an employee may elect to bring a claim for wrongful or constructive discharge either under the Workers’ Compensation Law or under some other law, but may not bring such a claim under both the Workers’ Compensation Law and some other law and as a result affirmed the determination.

Law Office of Leslie H. Johnson, of Center Sandwich (Leslie H. Johnson on the brief and orally), for the petitioner. Sulloway & Hollis, of Concord (James E. Owers and Matthew J. Snyder on the brief, and Mr. Owers orally), for the respondents.


Anthony Hayes v. Southern New Hampshire Medical Center
Argued: September 22. 2011
Opinion Issued: November 29, 2011
Affirmed.
  • Whether the trial court erred as a matter of law when it failed to find that the ex-wife’s death terminated a prejudgement attachment when she had quitclaimed her interest in the property subject to the attachment prior to her death.
The petitioner and his wife, Karen, were married in 1977. In 2006, Karen, who did not have health insurance, received emergency medical treatment at Southern New Hampshire Medical Center (“SNHMC”) for complications stemming from alcoholism, resulting in a balance due of $85,238.88. In November 2006, SNHMC filed suit in superior court against the Hayeses for Karen’s unpaid medical expenses. At the same time, SNHMC petitioned to attach a portion of the couple’s real estate. When SNHMC initiated its civil action, the Hayeses owned, as joint tenants with rights of survivorship, two unencumbered parcels of real estate – a rental property in Amherst (the Amherst property) and their primary residence in Merrimack (the Merrimack property). The attachment petition was granted and it was recorded on November 30, 2006. In January 2007, SNHMC petitioned to attach another parcel of the couple’s real estate. This petition was also granted, and the attachment was subsequently recorded.

By order of March 28, 2007, the Trial Court granted SNHMC’s motion for summary judgment against Karen in the amount of $85,238.88, plus costs, but denied the motion as to Anthony. Following a bench trial, the Trial Court entered judgment against Anthony in the same amount – $85,238.88 – under the doctrine of necessaries. Both judgments were appealed. On February 11, 2010, the New Hampshire Supreme Court affirmed the grant of summary judgment against Karen, but reversed the judgment entered against Anthony and remanded the matter for a new trial. During the pendency of these proceedings, on January 18, 2007, the Hayeses were divorced pursuant to a stipulated agreement. Under its terms, each was responsible for his or her own medical expenses not covered by insurance. Specifically, “Karen was responsible for paying the debt to SNHMC as well as any other medical debts or bills.” Karen received one automobile valued at $1,200 and her bank account with a balance of $0.00. Anthony was awarded the Merrimack and Amherst properties, which he acknowledged were subject to SNHMC’s attachments. Pursuant to their stipulation, on January 22, 2007, Karen quitclaimed the Amherst and Merrimack properties to Anthony. On August 25, 2007, Karen died.

In the spring of 2010, SNHMC obtained limited probate administration for the purpose of requesting a writ of execution to “proceed with a Sheriff’s sale on . . . the Amherst property in order to satisfy its judgment against Karen W. Hayes.” On July 20, 2010, the superior court issued a writ of execution for $88,849.59. Subsequently, the sheriff’s sale for the Amherst property was scheduled for November 30, 2010. On November 29, 2010, Anthony filed a Petition to Enjoin Sheriff’s Sale and for Declaratory Judgment. The Trial Court enjoined the sale, contingent upon Anthony posting adequate security, and scheduled a further hearing. After that hearing, the Trial Court concluded that “SNHMC’s attachment of Karen Hayes’s interest in the Amherst property remains valid and that SNHMC is entitled to execute against the property to satisfy its judgment against her.”

Here, the New Hampshire Supreme Court found that a joint tenancy with right of survivorship is a unique type of property ownership. Joint tenants are said to have a unity of title and of interest as well as of possession. See Wentworth v. Remick, 47 N.H. 226, 226 (1866). Each joint tenant has full ownership rights. See 17 C. Szypszak, New Hampshire Practice, Real Estate § 5.03, at 100 (2003). The distinguishing feature of a joint tenancy is the survivorship right, by which a surviving joint tenant succeeds to the entire real estate upon the death of the other joint tenant. See id.; see also Boissonnault v. Savage, 137 N.H. 229, 231 (1993). However, a joint tenant may alienate or convey her interest in the property, and thereby defeat the right of survivorship. Boissonnault, 137 N.H. at 231; see also Mulvanity v. Nute, 95 N.H. 526, 528 (1949). Here, Anthony concedes that Karen severed the joint tenancy when she conveyed to him, by quitclaim deed, her interest in the Amherst property. Accordingly, as a result of the severance of the joint tenancy, Anthony had no right of survivorship upon Karen’s death. See 17 C. Szypszak, supra § 5.03, at 100 (“If a joint tenant conveys his or her interest in the property, the joint tenancy is said to be severed and the owners become tenants in common.”); see also Wentworth, 47 N.H. at 227. Anthony also concedes that Karen quitclaimed her interest subject to SNHMC’s attachment and as a result, the New Hampshire Supreme Court affirmed the trial court’s ruling.

Smith-Weiss Shepard, of Nashua (Melissa S. Penson on the brief and orally), for the plaintiff. Welts, White & Fontaine, of Nashua (George H. Thompson, Jr. on the brief and orally), for the defendant.


Premium Research Services v. New Hampshire Department of Labor
Argued: October 13, 2011
Opinion Issued: November 29, 2011
Affirmed.
  • Whether the trial court erred as a matter of law when it dismissed the petition of Premium Research Services when it requested under the Right to Know Law disclosure of documents relating to disbursements from the second injury fund.
The second injury fund was created to encourage employers to hire or retain employees with permanent physical or mental impairments of any origin by reducing the employer’s liability for workers’ compensation claims.” The fund reimburses employers or their workers’ compensation insurance carriers when workers’ compensation benefits have been paid to “an employee who has a permanent physical or mental impairment . . . from any cause or origin” who “incurs a subsequent disability” from a work-related injury that results in a greater workers’ compensation liability “by reason of the combined effects of the preexisting impairment than . . . would have resulted from the subsequent injury alone.” N.H. Rev. Stat. Ann. § 281-A:54, I (2010).

The petitioner sought information related to reimbursements from the second injury fund so that it can know whether a carrier has reported the reimbursement to the National Council on Compensation Insurers (NCCI). If the carrier has reported the reimbursement to the NCCI, as NCCI regulations require, then NCCI will take the reimbursement into account when setting the employer’s “experience modification” or “experience mod.” The carrier will then, in turn, reduce the employer’s premium. Conversely, if the carrier does not report its reimbursement from the second injury fund to NCCI, NCCI will not adjust the employer’s experience mod, and the carrier will not reduce the employer’s insurance premium. The petitioner sought to monitor this process to ensure that employers are not being overcharged for workers’ compensation insurance.

In order to obtain information about when the second injury fund has reimbursed carriers, the petitioner submitted an information request to the New Hampshire Department of Labor (DOL) on November 9, 2009. The DOL refused to turnover this information. After resubmitting requests and removing requests for confidential information, the petitioner tried again attempted to request information. The DOL refused to turnover the information. Thereafter, the petitioner filed its petition against DOL and respondent New Hampshire Treasury, seeking disclosure of “all documents relating to disbursements from the Second Injury Fund occurring in 2005, 2006, 2007, 2008 and 2009 . . . with all employee names and insurer claim numbers redacted.” At the hearing on the respondents’ motion to dismiss the petition, the petitioner agreed to limit its request further to certain information available on two forms kept by DOL, the “WCSIF-2A”, which is a schedule of reimbursable payments, and the “9WCA,” which is an application for reimbursement of disability payments. At the hearing, the petitioner agreed that employee names, social security numbers, home addresses and average weekly wages could be redacted from these forms. The information the petitioner sought was limited to: the identity of the employer, the identity of the insurance carrier, the date of injury, the amount the second injury fund paid to the carrier, and the date on which the second injury fund agreed to reimburse the carrier. The trial court then dismissed the petition.

The New Hampshire Supreme Court affirmed the trial court’s decision. Under the plain meaning of N.H. Rev. Stat. Ann. § 281-A:21-b, the records sought are exempt from disclosure under the Right-to-Know Law. The petitioner contended that, despite the plain meaning of N.H. Rev. Stat. Ann. § 281-A:21-b, the legislature actually intended that it apply only to DOL injury reports containing personal employee information. However, the Court disagreed stating “[W]e must honor the expressed intent of the legislature as expressed in the statute itself.” Union Leader Corp. v. Fenniman, 136 N.H. 624, 627 (1993). As written, the statute applies to all DOL records that pertain to workers’ compensation claims, not only to DOL injury reports containing personal employee information. As there is no ambiguity in N.H. Rev. Stat. Ann. § 281-A:21-b with respect to the records to which it pertains, the petitioner’s resort to legislative history is to no avail. Although the petitioner argues that our construction leads to an absurd result, on the record before us, we are not persuaded that this is the case.

Douglas, Leonard & Garvey, of Concord (Benjamin T. King on the brief and orally), for the petitioner. Michael A. Delaney, attorney general (Lynmarie C. Cusack, assistant attorney general, on the memorandum of law and orally), for the respondents.


Salvatore Rabbia v. Max E. Rocha
Argued: June 23, 2011
Opinion Issued: November 29, 2011
Affirm in part, reverse in part and remand.
  • Whether the trial court erred as a matter of law when it directed that $37,000 plus interest being held in escrow be dispersed to the intervenor instead of the Plaintiff and denying the Plaintiff’s motion for attorneys’ fees.
For the purposes of the appeal, the New Hampshire Supreme Court, assumed, without deciding that the intervenor had a perfected security interest in the escrowed funds. Relying upon N.H. Rev. Stat. Ann. § 382-A:9-332, the plaintiff argued that any such interest was extinguished when the New Hampshire Supreme Court affirmed the trial court’s order enforcing the parties’ settlement and requiring the escrowed funds to be disbursed to the plaintiff with interest. The plaintiff argued that once this occurred, legal and equitable title to the funds passed to him, and, thus, a “transfer” within the meaning of N.H. Rev. Stat. Ann. § 382-A:9-332 occurred, extinguishing the intervenor’s secured interest in the funds. See N.H. Rev. Stat. Ann. § 382-A:9-332(a) (“A transferee of money takes the money free of a security interest unless the transferee acts in collusion with the debtor in violating the rights of the secured party.”); N.H. Rev. Stat. Ann. § 382-A:9-332(b) (“A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.”). The New Hampshire Supreme Court agreed with this analysis.

The New Hampshire Supreme Court found that purpose of N.H. Rev. Stat. Ann. § 382-A:9-332 is to “afford broad protection to transferees who take funds from a deposit account and to those who take money.” N.H. Rev. Stat. Ann. § 382-A:9-332 cmt. 2. Such broad protection “helps to ensure that security interests in deposit accounts do not impair the free flow of funds” and “minimizes the likelihood that a secured party will enjoy a claim to whatever the transferee purchases with the funds.” N.H. Rev. Stat. Ann. § 382-A:9-332 cmt. 3. N.H. Rev. Stat. Ann. § 382-A:9-332 does not define the term “transferee.” N.H. Rev. Stat. Ann. § 382-A:9-332 cmt. 2. However, “the debtor itself is not a transferee.” Id. Thus, N.H. Rev. Stat. Ann. § 382-A:9-332 “does not cover the case in which a debtor withdraws money (currency) from its deposit account or the case in which a bank debits an encumbered account and credits another account it maintains for the debtor.” Id.

As a result, the New Hampshire Supreme Court concluded that a “transfer” occurred on July 31, 2009, when it affirmed the trial court’s decision requiring disbursement of the escrowed funds to the plaintiff. As a result, the plaintiff acquired both legal and equitable title to the escrowed funds, entitling him to take them free of any perfected security interest the intervenor may have had in them.

Rinden Professional Association, of Concord (Paul Rinden on the brief), and Phillips Law Office, of Concord (Roger B. Phillips on the brief and orally), for the plaintiff. Law Offices of Edward W. Richards & Associates, of Nashua (Edward W. Richards on the memorandum of law and orally), for the defendants. Winer and Bennett, of Nashua (David K. Pinsonneault on the brief and orally, for the intervenor.


Town of Newington v. State of New Hampshire
Argued: September 22, 2011
Opinion Issued: November 29, 2011
Affirmed.
  • Whether the designation of prime wetlands under N.H. Rev. Stat. A:15 is a “land use control”.
In the 1950s, the federal government established the Pease Air Force Base (Pease AFB) in Rockingham County. In 1989, the Secretary of Defense approved the recommendation of the Commission on Base Realignment and Closure to close Pease AFB. In response, the legislature enacted RSA chapter 12-G (2003 & Supp. 2010), which, among other things, created PDA to accept title to the land of the Pease AFB on the State’s behalf. Before the land was deeded to PDA, the United States Air Force engaged in a series of environmental impact analyses required by federal law. Following several iterations of environmental documents and deed restrictions, PDA accepted title to the Pease AFB land in three title transfers between 1999 and 2005.

Shortly thereafter, the Town began the process of designating prime wetlands within its borders, pursuant to N.H. Rev. Stat. Ann. § 482-A:15 (2001), and subsequently submitted the designation of eighteen prime wetlands to DES, six of which are located on the former Pease AFB. DES initially “approved” the Town’s request, but later clarified that it “did not purport to ‘approve’ the legality of the Town’s designation of prime wetlands located within PDA boundaries, nor would the agency have statutory authority to do so.” Several months later, as part of a proposed construction project on PDA land to expand an existing office building, an alteration of terrain permit application was filed with DES. The Town objected, asserting that it involved fill within 100 feet of wetlands that the Town had designated as “prime” and, therefore, required a wetlands permit. DES disagreed.

After the Wetlands Council dismissed its appeal for lack of jurisdiction, the Town filed a petition for declaratory and injunctive relief in superior court the trial court concluded that PDA was not required to comply with the Town’s prime wetlands designations and, therefore, granted PDA and DES’s motion for summary judgment.

The New Hampshire Supreme Court found that Pursuant to statute, “‘[l]and use controls’ means all municipal ordinances and requirements or rules of [PDA] regulating the use, development, and improvement of property, including, but not limited to, zoning ordinances, subdivision regulations, site plan review regulations, and building, electric, plumbing, and fire codes.” N.H. Rev. Stat. Ann. § 12-G:2, XVI. The Town of Newington argued that “thedesignation of prime wetlands is a state requirement, not a municipal one.” The New Hampshire Supreme Court disagreed and found against the Town of Newington and affirmed the Motion for Summary Judgment.

Baldwin & Callen, of Concord (Steven M. Whitley on the brief, and Jed Z. Callen orally), for the petitioner. Sheehan Phinney Bass + Green, of Manchester (John-Mark Turner and Robert P. Cheney on the brief, and Mr. Turner orally), for respondent Pease Development Authority. Michael A. Delaney, attorney general (K. Allen Brooks, senior assistant attorney general, on the memorandum of law), for respondent New Hampshire Department of Environmental Services.




Naomi McNeill


Naomi McNeill is a judicial clerk for the Outagamie County Circuit Court in Appleton, WI. She is a 2011 graduate of UNH School of Law and holds an LL.M. in International Law from the University of Kent’s Brussels School of International Studies.



Christopher J. Somma


Christopher J. Somma, Esquire received his B.A. in Religion and Sociology from Bates College and a Juris Doctorate degree from the University of New Hampshire School of Law. He is currently employed as a Department Attorney in the Consumer Financial Services Litigation practice area of the Litigation Department in the Boston office of Goodwin Procter, LLP.

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